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Research On The Application Of CISG In Chinese Courts

Posted on:2015-05-29Degree:MasterType:Thesis
Country:ChinaCandidate:W L HanFull Text:PDF
GTID:2296330467453968Subject:Law
Abstract/Summary:PDF Full Text Request
" United Nations Convention on Contracts for the International Saleof Goods " has taken effect for more than25years. The courts in StatesParties to this Convention and arbitration institutions has applied theConvention as the applicable law to lots of cases, to deal with thedisputes about international sale of goods. China is one of the originalparties to the " United Nations Convention on Contracts for theInternational Sale of Goods ".A large number of international tradesof goods should be subject to adjustment by CISG when Chinese businessmenis one of the parties of contracts. Meanwhile, the nature andcharacteristics of the " Convention " determines that its applicationmust rely on inseparable unity explain. Whether CISG successfully promoteinternational sale of goods to reach the goal of a unified rule largelydepends on the inseparable unity explanation of domestic courts andarbitral institutions, depends on whether the referee institutions setaside the value of domestic law or not, thus promote the applicationof " Convention ". The Success of " Convention " depends on the qualityand consistency of its interpretation. We must uphold the purpose ofpromoting the unity of international sales law and explain it correctly. That is to say, we should reduce the obstacles of finding the judgmentplace in order to apply the law what we favor, and debase the necessityof using conflict law. Our ultimate goal is to provide a united regulationwhich adjusts the international sales specially.Chinese courts at different levels apply CISG as the applicable lawto adjudicate disputes in the area of international sales of goods andanalyze the rights and obligations of the parties. It can not only solvethe disputes between the parties, but can also fulfill the treatyobligations. It showed some positive features when CISG was applied tocases by Chinese courts, for example, the higher courts apply CISG morepositive than lower courts, the amount applied by courts in differentprovinces is distinct, the phenomenon of applying CISG initiatively byChinese courts is gradually increasing, CISG is also applicable to somecases which one of parties is located in Hong Kong and make deals thereunder special circumstances applicable to Hong Kong, and so on. Besides,there are also some interesting points when Chinese courts excluded theapplication of CISG. For example, using conflict rules to determine theapplicable Chinese law which is unreasonable, directly apply Chineselaws without any reasoning, excluding CISG because Chinese law andregulations are consistent with CISG, and so on. Compared with foreigncourts, arbitration institutions, Chinese courts also have diametricallypractices and conditions.However, we can also find that, on top of the cases applying CISG,there are lots of cases which should apply CSIG were judged on the baseof Chinese domestic law. There will bring about many troubles to tryto use domestic law to resolve international trade disputes. One is thatthe parties will be unsatisfied about the applicable law, the other oneis the destruction of the principle of " Treaty must abide by ". Westill need to improve the level of understanding CISG and the awareness of applying CISG to resolve disputes. We need to specify the norm inthe law application. From a more fundamental sense, we need to carryout a plan of amending law as a top-level design. On the constitutionallevel, we must make it clear which level should Treaties be in thecountry’s legal system. On the legislative level, we must provide aclearer skyline in the applicable provisions about Treaties. We needto make a timely judicial interpretation about the nature of the Treatieswhether it is concluded or joined and give overall guidance about theapplication of Treaties. At the same time, we need continue to improveour country’s foreign litigation centralized jurisdiction system, thuswe can make the foreign judgment to be more specialized. As for foreignjudicial personnel, more training is needed. The final goal is toestablish a sustainable development mechanism in the foreign judgment.CISG is applied in many fields of international trade and it graduallyincreases the breadth and depth in applying CISG as proper law, it willplay a more important role in the international trade fields. We shoulddevelop a more sound mechanism in the application of CISG and fostera good atmosphere judicial application of the Convention. It will beconducive to China to play a greater role in foreign civil proceedingsand let the international businessmen believe Chinese courts. We alllook forward to see a perfect settlement system that matches our statusin the international trade field.
Keywords/Search Tags:CISG, application of law, application of CISG
PDF Full Text Request
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